‘Invalid’ iPods threaten huge case

A multi billion-dollar US lawsuit may be in jeopardy – for want of an iPod.

Apple lawyers have raised an eleventh-hour challenge that could derail the long-running, class-action case over the tech giant’s use of restrictive software that kept iPods from playing digital music sold by competitors to its iTunes store.

The case went to trial in California this week, but Apple has said new evidence shows the two women named as plaintiffs may not have bought iPod models covered by the lawsuit.

Opposing lawyers are not ready to give up the case but US district judge Yvonne Gonzalez Rogers told both sides to file written arguments on whether the trial should proceed because she wants to begin considering the issue.

“I am concerned that I don’t have a plaintiff. That’s a problem,” the judge said at the end of the trial’s third day of evidence in Oakland.

Apple stopped using the software in 2009 and, after a series of pre-trial rulings narrowed the case, the lawsuit covers only iPod models bought between September 2006 and March 2009.

Plaintiffs are claiming that Apple’s restrictive software froze out competitors and allowed Apple to sell iPods at inflated prices. They are seeking 350 million-dollar (£224m) damages, which could be tripled if the jury finds Apple broke federal anti-trust law.

After plaintiff Marianna Rosen gave evidence, Apple lawyers said they checked the serial number on her iPod Touch and found it was purchased in July 2009. In a letter sent to the court late on Wednesday night, Apple lawyer William Isaacson said it appears the other plaintiff, Melanie Wilson, bought iPods outside the relevant time frame or, in one instance, purchased a model that did not have the specific version of software at issue in the case.

Mr Isaacson, who suggested the lawsuit could not proceed without a plaintiff, said he was asked for proof that either woman had purchased an iPod covered by the case. Plaintiffs’ lawyer Bonny Sweeney said her side was checking for other receipts.

She conceded that Ms Wilson’s iPods may not be covered, but also noted that an estimated eight million owners were believed to have bought the affected iPods.

The judge appeared irked at the last-minute hitch in a case that was originally filed nearly 10 years ago. She said she was not ready to decide without further briefing, but indicated she did not want to leave the issue unresolved indefinitely.